It does my American heart such good to see the system work, the courts stand up for the Constitution and the First Amendment against the — in the justices’ words — “arbitrary and capricious” censorship of the FCC (see the post below for the basics). This is an important decision for our rights, hitting at much that the FCC and his religious henchmen hold dear: their ability to regulate speech and, for that matter, to regulate speech on broadcast. I’ll review much of the decision below.

But first, here’s the best part of the appeals court ruling: The justices point to George Bush’s and Dick Cheney’s use of no-no words to prove that fuck and shit are not necessarily sexual, execratory, and indecent.

Similarly, as NBC illustrates in its brief, in recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced “sexual or excretory organs or activities.” . . . (citing President Bush’s remark to British Prime Minister Tony Blair that the United Nations needed to “get Syria to get Hezbollah to stop doing this shit” and Vice President Cheney’s widely-reported “Fuck yourself” comment to Senator Patrick Leahy on the floor of the U.S. Senate).

It also does my heart good to see babyfaced FCC Chairman Kevin Martin having a hissy fit of cursing over the ruling. His official statement:

Today, the Second Circuit Court of Appeals in New York said the use of the words “fuck” and “shit” by Cher and Nicole Richie was not indecent.

I completely disagree with the Court’s ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that “shit” and “fuck” are fine to say on broadcast television during the hours when children are most likely to be in the audience.

The court even says the Commission is “divorced from reality.” It is the New York court, not the Commission, that is divorced from reality in concluding that the word “fuck” does not invoke a sexual connotation.

These words were used in prime time, when children were watching. Ironically, the court implies that the existence of blocking technologies is one reason the FCC shouldn’t be so concerned. But even a vigilant parent using current blocking technologies such as the V-Chip couldn’t have avoided this language, because they rely on the program’s rating, and in this case the programs were rated appropriate for family viewing.

If ever there was an appropriate time for Commission action, this was it. If we can’t restrict the use of the words “fuck” and “shit” during prime time, Hollywood will be able to say anything they want, whenever they want.

No, Mr. Martin. What you say is bullshit. It’s fucked up. It’s fucking stupid. I wish you would stay the fuck away from our First Amendment.

There is absolutely nothing sexual or scatological in what I’ve just said — first, because I can’t imagine saying anything involving Kevin Martin that is in any way sexual (though I guess some might say he’s kinda cute), and second because what I have just made is a political statement. Here is my defense of bullshit as political speech a year ago. It’s just plain wrong to say that these words are sexual. And it’s worse for a government official to put himself in the position of judging our meaning, motive, and context to see what he will allow as a government censor. They’re just words, Mr. Martin. And the world did not collapse when you used them.

Other notes on the decision:

On appeal, the networks and other challengers put up a number of arguments against the FCC:

(1) the Remand Order is arbitrary and capricious because the Commission’s regulation of “fleeting expletives” represents a dramatic change in agency policy without adequate explanation; (2) the FCC’s “community standards” analysis is arbitrary and meaningless; (3) the FCC’s indecency findings are invalid because the Commission made no finding of scienter; (4) the FCC’s definition of “profane” is contrary to law; (5) the FCC’s indecency regime is unconstitutionally vague; (6) the FCC’s indecency test permits the Commission to make subjective determinations about the quality of speech in violation of the First Amendment; and (7) the FCC’s indecency regime is an impermissible content-based regulation of speech that violates the First Amendment.”

Most significant to me are Nos. 6 and 7: This is a violation of the First Amendment.

The court simply did not buy the FCC’s argument that some words are necessarily sexual, execratory, and indecent.

For instance, the Commission states that even non-literal uses of expletives fall within its indecency definition because it is “difficult (if not impossible) to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions.” This defies any common-sense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any “sexual or excretory” meaning. Bono’s exclamation that his victory at the Golden Globe Awards was “really, really fucking brilliant” is a prime example of a non-literal use of the “F-Word” that has no sexual connotation.

In other words, the court calls the FCC’s bullshit.

And the court takes into account different times. It says the FCC may change its policies but must explain why.

The FCC’s decision, however, is devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishes that this harm is serious enough to warrant government regulation. Such evidence would seem to be particularly relevant today when children likely hear this language far more often from other sources than they did in the 1970s when the Commission first began sanctioning indecent speech. Yet the Remand Order provides no reasoned analysis of the purported “problem” it is seeking to address with its new indecency policy from which this court can conclude that such regulation of speech is reasonable.

In other words, today you can hear these words on playgrounds or the Senate floor. What’s the big deal?

Though the court declines to make a constitutional ruling on this, it nonetheless gives the FCC a good preview of what the courts will say regarding First Amendment protections of our speech:

. . . we are skeptical that the Commission can provide a reasoned explanation for its “fleeting expletive” regime that would pass constitutional muster. . . .

As an initial matter, we note that all speech covered by the FCC’s indecency policy is fully protected by the First Amendment. See Sable Commc’ns v. FCC . . . (noting that speech “which is indecent but not obscene is protected by the First Amendment”); Industry Guidance, . . . (“[I]ndecent speech is protected by the First Amendment, and thus, the government must both identify a compelling interest for any regulation it may impose on indecent speech and choose the least restrictive means to further that interest.”). With that backdrop in mind, we question whether the FCC’s indecency test can survive First Amendment scrutiny. For instance, we are sympathetic to the Networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague. Although the Commission has declared that all variants of “fuck” and “shit” are presumptively indecent and profane, repeated use of those words in “Saving Private Ryan,” for example, was neither indecent nor profane. And while multiple occurrences of expletives in “Saving Private Ryan” was not gratuitous, . . . a single occurrence of “fucking” in the Golden Globe Awards was “shocking and gratuitous,” . . .

The court goes on to point out the inconsistency of the FCC blessing bad words from white soldiers on Saving Private Ryan but penalizing black musicians for saying them on a PBS documentary.

We can understand why the Networks argue that FCC’s “patently offensive as measured by contemporary community standards” indecency test coupled with its “artistic necessity” exception fails to provide the clarity required by the Constitution, creates an undue chilling effect on free speech, and requires broadcasters to “steer far wider of the unlawful zone,” . . .

Thank god, they recognized the chill the FCC has put on speech and artistic expression.

They also note, backing up the networks’ protest, the Supreme Court’s decision striking down the Communications Decency Act, which hd tried to regulate our speech on the internet. We should take this, too, as a good sign for our speech here. Says the appeals court:

The Networks’ position is further buttressed by the Supreme Court’s decision in Reno v. ACLU, which struck down as unconstitutionally vague a similarly-worded indecency regulation of the Internet. The Court found that the statute’s use of the “general, undefined terms ‘indecent’ and ‘patently offensive’ cover large amounts of nonpornographic material with serious educational or other value. Moreover, the ‘community standards’ criterion as applied to the Internet means that any communication available to a nation wide audience will be judged by the standards of the community most likely to be offended by the message.” Because of the “vague contours” of the regulation, the Court held that “it unquestionably silences some speakers whose messages would be entitled to constitutional protection,” and thus violated the First Amendment. Because Reno holds that a regulation that covers speech that “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs” is unconstitutionally vague, we are skeptical that the FCC’s identically-worded indecency test could nevertheless provide the requisite clarity to withstand constitutional scrutiny. Indeed, we are hard pressed to imagine a regime that is more vague than one that relies entirely on consideration of the otherwise unspecified “context” of a broadcast indecency.

As I see it, the appeals court is warning the FCC that if it appeals this ruling to the Supreme Court, it may lose much or all of its power to regulate speech.

Yet another important part of the ruling: The appeals court objects to government making subjective rulings over our speech:

We also note that the FCC’s indecency test raises the separate constitutional question of whether it permits the FCC to sanction speech based on its subjective view of the merit of that speech. . . . In the licensing context, the Supreme Court has cautioned against
speech regulations that give too much discretion to government officials.

Further, the appeals court questions the basis for exempting broadcast speech from the First Amendment’s shield, since broadcast is no longer exclusive and pervasive:

The Networks contend that the bases for treating broadcast media “different[ly]” have “eroded over time,” particularly because 86 percent of American households now subscribe to cable or satellite services. As the Networks argue, this and other realities
have “eviscerated” the notion that broadcast content is, as it was termed in Pacifica, “uniquely pervasive” and “uniquely accessible to children.”

The court won’t go that far but then adds:

Nevertheless, we would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children, and at some point in the future, strict scrutiny may properly apply in the context of regulating broadcast television.

The court then quotes a decision regarding Playboy and finding the least restrictive means of regulating it on cable saying that the issue is a “pillar of free speech, namely choice.” My emphases:

When a student first encounters our free speech jurisprudence, he or she might think it is influenced by the philosophy that one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum, beauty, and esthetics are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.

Amen.

The appeals court also says that the V-chip and other “technological advances may obviate the constitutional legitimacy of the FCC’s robust oversight.” And it scolds the FCC for its lackadaisical behavior in reviewing cases.

: Here also is my Nation cover story on the FCC and its capricious and unconstitutional regulation of speech.

“What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”
A valid argument on a lot of other social issues, too. Such as helmet laws, seat belt laws, public smoking, etc.
Why do some people get so worked up over government regulation of dirty words over the public airwaves, yet invite the government to dictate our decisions regarding so many other personal-choice matters?
That will forever be an F-ing mystery to me.

MARTIN: “I find it hard to believe that the New York court would tell American families that â€œshitâ€ and â€œfuckâ€ are fine to say on broadcast television during the hours when children are most likely to be in the audience… It is the New York court, not the Commission, that is divorced from reality.”

No, Kevin, it’s you and the FCC that are divorced from reality. The reality is that children are most likely to be in the audience at ANY time. And if they’re not watching the broadcast networks you’re trying to wash out with soap, they may very well be watching the pay channels which you only wish you could. At least you admit the V-chip is a non-solution.

With unexpurgated cable and Internet in so many homes now, with uncensored DVDs easily available and widely watched, the arguments in favor of the profanity police are fading. This is not the broadcast world of the 1960’s and 70’s, when spectrum was scarce. And yet, the broadcast networks are forced to play by different rules. Most of the basic-cable nets also filter out profanity, but mostly as a good-neighbor policy.

I really want to see this case go before the Supreme Court. If the President and VP can cuss like sailors in the performance of official duties and not get fined for it, neither should the networks. It’s time the FCC stop giving into these compulsively angry right-wing groups and start standing for the Constitution and clear guidelines that can’t be bent to serve those with aspirations of national nannydom.

For the record, I’m a Christian. And I seethe when I see people mount holy wars that rip up the Constitution.

The first amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;…”

Let’s see it says NO LAW, yet we have many laws restricting freedom of speech, especially those concerned with “pornography” and critical political speech. It’s nice that the court has ruled against enforcing arbitrary blasphemy restrictions, but we are still a long way from real freedom of speech.

Apparently there isn’t a phrase in the English language that can’t be twisted to mean its opposite by clever jurists. Given the conservative makeup of the court and the easy target that critical speech makes there is little chance that we will see true free speech restored anytime soon.

Well. It has been some time since someone in the courts showed this much backbone. Now we’re seeing more and more of things like this each day. Amazing. Truly amazing.

I can’t say that I’m terribly sorry to see the Mental Minority besieged on yet another front, particularly THIS one. The more fronts we can have them pulling the defensive on, the better, in my opinion.

Just so you all know, however, this is going to lead to another paradigm shift.

Yes, the FCC has been caught up with the whole ‘dictating morality’ thing for far too long, and in far too arbitarary a fashion, but there’s another side to this. Introduce the universality of expression to some of these words and phrases, and those of us with children will soon be hearing them around the dinner table. From kids. Sometimes aimed at US, the parents.

Let’s don’t forget that there has been a major shift in parental ability to control children over the past decade or two. When I was growing up, a parent thought nothing of smacking a wiseacre kid in the mouth if he or she ‘popped off’ with a clever catch-phrase of this sort. Nowadays, I wander the supermarkets in a daze as I witness the powerless Mom at the mercy of her squalling kid, unable to deal out physical retribution to an angry child heaping abuse on her for not buying the latest junkfood or hot toy.

Oh sure, physical punishment was bad – no mistaking that. With some parents it got totally out of hand. But nowadays parents live in terror of their kid picking up the phone and calling DHS while their backs are turned. So, does the Mom get to ‘negotiate’ with the angry kid in mid-store? “Okay, keep it up and there’ll be no TV tonight!” I actually heard one kid reply “So? I’ll just go over to April’s and watch it over there.”

I rather imagine it’s going to take some getting used to for a good many parents, having their kids flinging this kind of language around the house. In a lot of cases, nothing is going to be done about it. Too many double-income families just don’t have the time to monitor child behavior on a basis regular enough to instill the kind of wisdom and judgement from parents that many of us enjoyed in the past.

Okay, a lot of what went on in that past I’m referring to was a thinly-veiled hypocrisy – but at least you didn’t have to deal with a kid calling you ‘F**kface’ at the dinner table.

So…this is going to usher in a new era of parent-child relations…a field which has already become pretty much a highwire act for a lot of parents. You want absolute freedom of speech? Be prepared to give it to your kids as well…and get ready for a whole new set of challenges to relating to them.

Honestly, I think this court ruling was a good thing. Really. I just have this unpleasant feeling that, like everything else, it’s a two-edged sword. Yeah, we can say whatever we want… and so can our kids…

chico haas

Fuck and shit are lazy words. I use them quite a bit as a substitute for the words I can’t find. Or to express how strongly I believe in something “a fucking lot!” I tried not to use them around my kids, but I failed many times, mostly in the garage and in the car. I find them acceptable in adults and rude mouthed by children. One can cite the First Amendment (even in a blog that considers Howard Stern a defender of it) but the truth is fuck and shit are words better suited for adults, like liquor. I appreciate Mr. Martin’s outrage. It’s kind of charming how, in today’s world, he wants to maintain even this small standard for the public airwaves.

CB

I think the best examples of what’s wrong with the use of certain langauge in certain conditions in society are the uses of them in the comments area, people saying certain things for the buzz it gives them (no pun intended, Jeff).

Also, Jeff fails to convincingly make the point that certain words can be used apart from their sexual or scatological connotations. Well, you can intend to mean them that way, but language doesn’t work like that. We don’t just pull terms out of the air regardless of their root connotations (except for the occasional wanna be hipster trying to get a catch phrase going). The use of the terms as exclamations come about precisely because the actual meaning of the terms is debased by the user (not withstanding the debasing nature of such expletives to the original concepts they depict). That they pass on into the lexicon of general exclamations to the point of a certain kind of antagonistic meaninglessness is a direct result of the original debasement of the words’ meaning. See Richard Curtis’ “The Skinhead Hamlet” for an example of this everyday practice taken to the ridiculous nth degree, or the Python episode where Graham Chapman uses the line “Oh, intercourse the penguin” for a variation on the concept.

I do agree with Jarvis that the failure of the FCC to treat cases consistently is a failure, but language has meaning. It offends me as much to see an Afrian American comedian use the N-word as it does an ignorant bigot. We can spend all day pretending that the comedian has the higher ground because they are more enlightened and not racially hostile, but we miss the more salient point that they have only co-opted an vulgarity that still means the same thing: the denigration of a people based on their race.

To be sure, I’m not arguing for prohibition of such words. Rather, the Court’s ruling only stands to take us to the opposite extreme of the FCC’s strict policy, where the childish among our “creative” community will attempt to demonstrate just how “adult” they are, by getting away with whatever they can. To be sure, parents who value their input into their children’s own values about such things will now need to be even more vigilant than before. Maybe that’s the way to protect “freedom of speech” (which Jarvis and some commentors seem to define at the Least Common Denominator) but society itself will be debased more because of it.

Greg0658

If the next step to create a mindbuzz in a mundane world is say “Thunderdome” (MadMax) … I’m outta here.

Charlie (Colorado)

I woulda sworn this was the place where people got banned for using naughty words.

Mark Rutledge

“That (vulgar terms) pass on into the lexicon of general exclamations to the point of a certain kind of antagonistic meaninglessness is a direct result of the original debasement of the wordsâ€™ meaning.”

Nicely stated, CB. An example that comes to mind is the term “sucks,” as in “he sucks,” “she sucks,” “this job really sucks.” Talk about a word with a nasty root connotation that has passed into the lexicon of general exclamations.

I’m not sure if Mark is being a tad sarcastic here or not, but he does raise an important point. Why do words like “sucks” or “screw” seem less offensive than the “f-bomb” to some?

I think the answer from a linguistic point of view is simple enough. The root meaning of the former words is more diverse, even if the original connotations that lead to their use as an exclamation is expressly sexual. In the case of the f-bomb though, the root meaning is explicitly sexual and not only so, but with the basest intent. This is why society didn’t develop the exclamations “intercourse you” or “you’re ‘makin love’ stupid.” Because those terms have a neutral or positive connotation sexually.

Even the difference between someone saying “you’re ‘F-ing’ stupid” as opposed to the use of the full word in the exclamation have greater acceptance, because the use of the lette as opposed to the word connotates an avoidance of the word’s primary meaning. In other words, people who say “F-ing” as opposed to “f***ing” are aware of the sexual connotation and are attempting to emphasize the exclamatory rather than the sexual in the expression.

It’s also worth pointing out that the argument Jeff uses, abut his own use of the words in this post, is to really kosher:

“There is absolutely nothing sexual or scatological in what Iâ€™ve just said â€” first, because I canâ€™t imagine saying anything involving Kevin Martin that is in any way sexual (though I guess some might say heâ€™s kinda cute), and second because what I have just made is a political statement.”

Politics or Jeff’s own sexual intent really have nothing to do with it. The words have a sexual connotation. You can’t divorce that from them simply because you didn’t intend the meaning or because you and a certain portion of society feel they stand a solely exclamations. The argument seems to be that the FCC Chairman is being overly unreasonable in acknowledging those connotations, but in fact he’s recognizing that the connotations are still quite valid in American society. Regardless of the inflexible and inconsistent nature of the FCC regulations (which are far better grounds for the ruling to stand on) Martin seems to be far more in touch than Jarvis or the courts on those grounds.

Mark Rutledge

No sarcasm, CB. While reading your first post, I thought of how we’ve seen, over the last 30 or so years, the word “sucks” go from being an exclusively schoolyard expression to almost totally acceptable in printed and spoken form. I’d hate to think the “F-bomb” is experiencing a similar evolution — with our without government regulation.

freedomlover

“Broadcast decency” laws are not merely an indication of sanctimonious arrogance that so many in the gov’t operate under, but also indicate how incredibly worthless it is! It’s much easier for these career politicians and bureaucrats to pick on people saying “bad words” than operating on a balanced budget or with any sense of honor and integrity.

This latest ruling from the Second Circuit Court of Appeals gives me some hope that our country hasn’t completely gone to the hell that has been created by a succession of sanctimonious authoritarians.

And as for kids, nobody uses expletives more than an 11 year old. I think the kids can handle some foul language on the tube.

Hardly the point. Just applying a sense of decorum, would your opinion be the same if it was real x-rated sex in front of your kid on tv?

As a responsible parent, the First Amendment doesn’t apply in my household. Use the word fuck in my presence and you are in trouble. Same with watching porn. I don’t appreciate slobs on the public airwaves that my kids can access either.

So, with your comment, I take it that adult intervention isn’t needed?

Nice.

Mark Rutledge

“As a responsible parent, the First Amendment doesnâ€™t apply in my household.”

Excellent point, Penny.

CB

Mark,

Thanks for the clarification.

I agree completely. (Full Disclosure – I did drop my first f-bomb in second grade – but it was a one off for a while. Of course, I grew up on military bases so there was a bit of salty language about.)

I think you have to think about this stuff a little more deeply than “fuck, bad” “screw, good”. The actual words aren’t the point and they never were. The words change over time and new ones come along and you have to adapt with the times. There’s no such thing as a “bad” word, the idea is silly.

There IS, however, such a thing as an impolite word. The point of it all is civility. We jointly agree to put certain limits on our speech and actions under “polite” conditions. Why should we do this? Because it expresses our mutual respect for each other and thus leads to a “civil” society. Most of us wouldn’t mention to our grandmother than she looks “fucking lovely today” because we respect her and wish to show it.

Take these constrains away and there no longer can be a civil society. This is about the point we’ve come to now. It’s perfectly ordinary to hear people express the most crude and rude thoughts at any time in any place. Someone cut in front of you at the Starbucks? Fine, loudly denounce them as an asshole. It’s OK, becuase no one respects anyone else anymore anyway. When you find out that they didn’t actually cut in front of you, but had just stepped aside to drop something in the trash, well, they’ll loudly denouce you as a cocksucker. After all, you’ve proved deserve no more respect than they do and the fact that you just made a mistake doesn’t count.

Civil society exists to grease the wheels of social interaction. It prevents arguments from turning into fights and prevents transgressions that might have been unintentional or simple mistakes from turning into ugly incidents. The US has pretty much lost its civility and setting broadcast airwaves to “anything goes” status is just one more symptom.